To put it simply, "routine whoring" means that the actor operates high-end bath centers, men's health centers and other similar industries, and in the process of promoting and selling services to customers, according to the preset "speech skills", through communication tools such as the Internet and telephone, pretending to be a beautiful woman and attracting customers to shop.
After the customer arrives at the store, the marketing staff and service staff in the store cooperate with each other through verbal hints, body movements and so on. , so that customers mistakenly think that after recharging the "VIP" or VIP card, they can become members and enjoy pornographic services. However, after paying the fee, customers only enjoy the normal services such as ordinary massage and bathing provided by technicians.
For this kind of cases, there is great controversy in judicial practice. The judiciary tends to think that it is fraud, while scholars and lawyers tend to think that it is civil fraud, not criminal cases.
There are several reasons:
First, the money paid by the victim for the prepaid card has not been transferred.
Speaking of this, we must first understand the nature of the victim's prepaid card.
The General Office of the State Council forwarded the notice of the Supervision Department of the People's Bank of China on regulating the management opinions of commercial prepaid cards: "According to different card issuers, it can be divided into two categories: one is a multi-purpose prepaid card issued by a licensed card issuer that can be used across regions, industries and legal persons; The other type is a single-use prepaid card issued by a commercial enterprise, which only purchases goods and services in the enterprise or chain commercial enterprises of the same brand. "
Measures for the Administration of Single-use Commercial Prepaid Cards (Trial): "Article 2 These Measures are applicable to enterprises as legal persons engaged in retail, accommodation, catering and residents' services (see Annex 1 for specific industry classification) in People's Republic of China (PRC).
The measures referred to in single-use commercial prepaid cards (hereinafter referred to as single-use cards) refer to prepaid vouchers issued by enterprises specified in the preceding paragraph, which are limited to the payment of goods or services within the enterprise or the group to which the enterprise belongs or within the franchise system of the same brand, including physical cards with magnetic stripe cards, chip cards and paper coupons as carriers and virtual cards with passwords, serial numbers, graphics and biometric information as carriers.
Twenty-first card issuing enterprises or card selling enterprises shall provide card withdrawal services in accordance with the articles of association or agreement of single-use cards.
When handling the card withdrawal, the card issuing enterprise or the card selling enterprise shall require the card withdrawing person to show his/her valid identity document, and keep the card withdrawing person's name, valid identity document number, card withdrawing number, amount and other information.
The card issuing enterprise or the card selling enterprise shall return the funds to the bank account with the same name as the card withdrawing person, and keep the bank account information. Cash can be paid if the balance of funds in the card is less than 100 yuan (inclusive).
Article 22 If a card-issuing enterprise terminates the payment of an unexpired single-use card, the card-issuing enterprise and the card-selling enterprise shall provide the cardholder with free card return service and make an announcement on the media designated by the filing organ at least 30 days before the termination of payment.
Twenty-fourth card issuing enterprises should strictly manage the funds received in advance. The funds received in advance can only be used for the main business of the card issuing enterprise, and may not be used for investment and lending in real estate, equity, securities, etc. "
According to the above provisions, when the actor recharges the victim's card, the advance payment collected for the victim is only the funds advanced by the victim, and the ownership belongs to the victim. The prepaid card is in the hands of the victim, and the victim has the right to ask the store to refund the unpaid funds in the card at any time.
So the money paid by the victim has not been transferred.
Second, the victim's funds were not illegally occupied.
There are many "VIP" cards handled by the victims, all of which have different amounts of deductions. However, these deductions occurred because the victims consumed the same massage items.
In this case, there is no case where the victim withheld money but didn't actually spend it.
As mentioned above, the amount paid by the victim in the card is only the advance payment. According to the different services they enjoy, the money deducted from the membership card is the money actually paid by the victim.
If such cases are identified as fraud crimes, there will be contradictions. That is, how to determine the victim's fraud amount?
If the full amount of the victim's recharge is determined as fraud amount. It is obviously not objective to show that the formal massage and bathing services actually enjoyed by the victims are worthless.
If the amount spent by the victim is deducted, only the remaining amount in the prepaid card will be recognized as the crime amount. Then, this part of the money did not transfer ownership, and the actor did not possess it. It is also inconsistent with the facts of the case to identify the money as a crime amount.
If the amount spent by the victim is regarded as the amount of crime, it is even more inconsistent with the facts. This part of the amount is obviously the consideration for the victim to enjoy the service. He knows what kind of project, price and quality he actually consumes every time. This part of the amount of "fraud" is hard to convince.
Three, the actor does not have the purpose of illegal possession.
Whether the actor has the purpose of illegal possession is the key link to identify the crime of fraud.
Judging from the case, the actor has been operating normally since receiving the advance payment, and there has been no escape after receiving the money.
The money deducted by the victim has corresponding service items, and there is no case of not providing or evading providing services after receiving the money.
It's just that when some victims ask for pornographic services, the perpetrators shirk it for various reasons and don't provide such illegal services. However, the value of the money deducted by the actor corresponds to the normal service it provides.
For the victim who requests to return the card, the abuser will generally appease and explain first. For the victim who insists on returning the card, the abuser will also return the funds in the card.
Judging from the characteristics of the above cases, the perpetrator did not have the purpose of illegally occupying the victim's funds. Its cheating behavior is more reflected in the purpose of increasing turnover and sales.
Therefore, in this case, the service will be provided only after the person involved receives the advance payment from the victim; Or after receiving the victim's advance payment, close the store and escape, in order to determine that the person involved has the purpose of illegal possession. If this situation does not exist, it should not be considered that the perpetrator has the purpose of illegal possession, nor should it be considered as a crime of fraud.
In a broader sense, when identifying an act as a crime, we need to consider what kind of value to protect and what kind of price order to maintain
In such cases, the key reason why the victim is considered as a "victim" is that the pornographic service he hoped to get was not obtained. This kind of appeal is obviously against the law and ethics.
If this kind of case is regarded as a crime, it is not protecting an order that obviously violates legal values.
From the actor's point of view, he did not provide pornographic services, which shows that he avoided obvious cross-border behavior and reflected his inner unwillingness to violate the criminal law. If it is recognized as a crime, it will lead to a dilemma-the perpetrator either constitutes fraud or organizes prostitution. "The law is not ultra vires" obviously violates the legislative intent of criminal law.
Therefore, for such cases, it is only recognized as civil fraud. The victim can claim to terminate the contract on the grounds of fraud and make compensation through civil litigation. For the actor, administrative punishment measures are enough to punish him. Criminal law, or to maintain its due "modesty" as well.